Sex, lies and triple-deleted emails

An email unearthed by an FOI request raises questions about the Elsner investigation and the Lowe Report. So do all the deleted emails.

POLICE COMPLAINT COMMISSIONER Stan Lowe’s September 2018 report on the investigations into former Victoria Police Department Chief Frank Elsner excoriated Victoria Mayor Lisa Helps and Esquimalt Mayor Barbara Desjardins for the way they conducted an initial investigation of Elsner in 2015. Lowe asserted that the mayors “had predetermined the outcome of the internal discipline process from the outset, and set about navigating a course to allow the former chief to remain in his post.”

He provided much evidence to support his contention, but the mayors disputed his conclusion. Both claimed they had been libelled and made veiled threats of legal action against Lowe. Lowe’s office invited the mayors to call for a public inquiry. Deputy Police Complaint Commissioner Rollie Woods stated, “we have a considerable body of evidence we would be willing to provide at any public inquiry so the truth would certainly come out.”

Did the mayors have any evidence that would support their claims? They weren’t offering any, so Focus filed an FOI for the communications between the two mayors during the three months of their investigation of Elsner. The Victoria Police Board released those records to us in mid-December (See link at the end of this story).

That release contained only one email written by Mayor Helps to Mayor Desjardins during September, October and November 2015 when they conducted their investigation. Helps’ one email consisted of three words. On September 4, 2015, shortly after the mayors had been informed about salacious Twitter messages from Elsner to the wife of a subordinate VicPD officer, Desjardins copied Helps on an email to Elsner wherein she asked him for a meeting about “a personal matter requiring your assistance...” About five hours later, Helps emailed Desjardins and asked, “Did he respond?” Within an hour Desjardins wrote back to Helps: “Got auto response he is away unt [sic] the 8th have got a phone number and will call tomorrow.” And then, for the next three months, Helps was apparently silent, never communicating with Desjardins by email on this subject.

By way of an explanation for the scarcity of records of the two mayors’ communications, VicPD’s Collette Thomson noted, “A limited number of records were accessible due to email retention schedules.” By that she seems to mean the emails the mayors exchanged were deleted.

The scant record that remains appears to have survived only because paper copies of a few emails gathered for a previous FOI request—made by an unknown entity—were kept by the Township of Esquimalt. All of Helps’ emails related to the first three months of the internal investigation have been deleted, even though it took place just over three years ago. All of her emails go through mailboxes hosted on City of Victoria servers and retention of the mayor’s email records is the responsibility of the City of Victoria.

If the mayor’s emails have been deleted, that means that in less time than the 4-year term of an elected City of Victoria mayor or counsellor, critical records of what they did while in office are being destroyed by the City. That’s what Thomson’s explanation implies.

If you are thinking, “Well, that doesn’t seem right,” you’re correct. The City of Victoria’s “Records Retention and Disposition Authority” for the Mayor’s Office requires that both electronic and paper records that are created to “document the operations of the mayor” must be “retained for 10 years overall, and then transferred to Archives for selective retention.” The Police Board has no written policy regarding “email retention schedules,” and, in any case, the emails were never in its physical control or custody. They were in the physical control and custody of the City of Victoria. Regardless, according to Thomson, those records are gone.

It’s difficult to imagine why any City employee other than the mayor herself would delete the mayor’s Elsner investigation emails from the City’s electronic document storage system. We are left with the presumption that the mayor may have deleted these emails before they could be put into long-term storage.

To understand in a fundamental keep-democracy-healthy kind of way why the communications between Helps and Desjardins matter—and why they should have been preserved—consider what former BC Information and Privacy Commissioner Elizabeth Denham wrote in her investigative report Access Denied: Record Retention and Disposal Practices of the Government of BC.

Denham conducted her investigation in response to a case in which a person in the BC Premier’s Office “triple-deleted” emails in order to hide his conduct from public scrutiny. Her report described in detail how emails could be triple-deleted. The commissioner noted that “In conducting this investigation, it has become clear that many employees falsely assume that emails are impermanent and transitory, and therefore of little value. What this investigation makes clear is that it is a record’s content and context that determines whether a record is transitory, rather than its form.”

Ironically, Denham released this report on October 22, 2015, right at the time Helps and Desjardins were conducting their own investigation into Elsner. At that time, Denham wrote, “Democracy depends on accountable government. Citizens have the right to know how their government works and how decisions are made.”

Our “right to know” translates into a right to access government records, such as Helps’ and Desjardins’ emails. But, Denham wrote, “Access to information rights can only exist when public bodies create the conditions for those rights to be exercised. Government must promote a culture of access, from executive leadership to front-line employees. If they fail to meet this obligation, the access to information process is rendered ineffective.”

If Helps deleted 100 percent of her emails, which appears to be the case, then she rendered access to information 100 percent ineffective. According to Denham, that means there’s zero accountability. With no accountability, the City of Victoria resembles more an authoritarian regime than a democratic institution. Evidently, City Hall has some vital work to do to meet its legal obligations around information access.

The Township of Esquimalt did preserve some records of the email conversations between Desjardins and Helps. One of those emails seems to challenge a claim Lowe made about the mayors and it topples a claim Helps made about the mayors’ investigation.

In the analysis that follows, I’m going to focus on just one aspect of Lowe’s case against the mayors, the question of whether or not they buried allegations of harassment made against Elsner by two female VicPD members. The harassment allegations were made, we later learned, soon after the existence of Elsner’s sexually-charged tweets with the wife of a subordinate officer was made known to the mayors.

Lowe’s description of what the mayors did with these allegations amounts to a claim that they hid them from his office in order to protect Elsner from any repercussions. But Helps told Focus last August that investigation of such allegations was outside the mandate of their investigation: “We were authorized to deal only with the issues of whether Elsner had engaged in an inappropriate relationship with the wife of a VicPD member and whether Elsner had improperly used police social media accounts,” Helps wrote in an email.

Lowe, though, has written, “It was my expectation that if the investigation revealed evidence of conduct that could constitute a disciplinary breach of public trust, the [mayors] would raise the matter with our office.” Lowe says they never did. His report shows that the mayors rushed to make a decision about how to discipline Elsner after they were informed the story would soon appear in the media. Lowe was given no information about the mayors’ decision, but requested details after both mayors made statements that attempted to mislead reporters on whether an investigation had taken place. The records the mayors turned over to Lowe contained no mention of the harassment allegations. Lowe learned about these additional allegations only after the Victoria City Police Union brought them to his attention.

There is no doubt the two mayors emailed back and forth about these allegations. Lowe’s office secured some of those communications through its legislated power to obtain records. The full record of their back and forth communications would help us understand exactly what the mayors were thinking and whether or not Lowe’s assessment of their actions is correct. Indeed, what the Township of Esquimalt released shows the mayors did communicate by email, and I’ll get to that in a moment. But first, let’s consider whether the additional allegations were serious enough that it is reasonable to expect the mayors would have taken action, including informing Lowe, as soon as they had been made aware of the allegations.

Three additional allegations were brought forward by two female VicPD employees. The descriptions below were included in the judgment made by retired Judge Ian H. Pitfield as part of the external investigation of Elsner’s conduct ordered by Lowe in December 2015. Release of Pitfield’s judgments had been delayed by Elsner’s legal maneuverings until September 2018, when Lowe released his report. Had the mayors followed up on these allegations themselves, presumably they would have come to a similar understanding as Pitfield did. Here are Pitfield’s descriptions:

First allegation: “[Elsner] pressed his groin against her buttocks, and his chest against her back in what [Officer A] described as a ‘nuts to butts’ maneuver… She told investigators she was shocked that ‘my new Chief would stand behind me and from a female’s perspective it’s almost like an oppressive position in a, in a way, like just was very inappropriate, awkward.’”

Second allegation: “Officer B said that the day of a police Mess Dinner in 2015, the former chief approached her in a hallway at the VicPD headquarters and held her by both arms with her back against or close to the wall for about a minute. She told investigators that she felt uncomfortable that the former chief was ‘in her space’ and holding her by the arms.”

Judge Pitfield described the third allegation: “The third allegation also involved Officer B. It arose at a use-of-force training session in 2014 at which the former chief was paired up with Officer B to practice lateral neck restraints; that involved close body contact. Officer B said: ‘…when she applied the restraint to Mr Elsner, or him to her, he said things like you are so warm, don’t stop, or, I could do this all day, you’re so warm.’ She said the comments were made multiple times. She stated that while the comments were not overtly sexual, she felt they had a sexual tone as they were made at the time when their bodies are touching during the use of force scenarios.”

In hearings before Pitfield, Elsner denied all of these allegations. But Pitfield made it clear that he believed the women, and found that “because Mr Elsner was the Chief Constable, the members were his subordinates, he stood in a position of power and responsibility vis-a-vis both members, and the three instances constituted breaches of VicPD workplace policy and the terms of his employment contract, I consider the misconduct to be well advanced on the seriousness scale.”

So let’s circle back to the question of whether there’s evidence beyond that provided by Lowe’s report that the two mayors tried to bury these allegations.

As mentioned earlier, the surviving record of email communications between the two mayors during September, October and November 2015 is sparse. The only surviving records were obtained from Esquimalt. From its records, one email stands out. For one thing, someone has run a black felt pen through two sections of text, hiding part of Desjardins’ message to Helps. This wasn’t an ordinary redaction permitted or required by BC’s privacy and information law. Rather, this was done by somebody trying to hide something. Even though the content of the email has obviously been tampered with and so is likely to be regarded with suspicion, it has still been brought forward. To me this suggests that someone wanted us to see the other part of the message—the part that isn’t blacked out.

Mayor Desjardins appears to have wanted a second investigation into harassment allegations against Elsner.

The part that’s still readable suggests that by October 15, 2015, just over a month into the investigation of Elsner’s salacious tweets, the mayors knew about the additional harassment and bullying allegations against Elsner. It suggests that Desjardins believed those allegations needed to be investigated. She wanted to ask “Pat” to take that on, but had someone else in mind if necessary. “Pat” is Patricia Gallivan, QC, the Vancouver lawyer who conducted the mayors’ investigation.

Note how this seems to conflict with Lowe’s claim that the two mayors “had predetermined the outcome of the internal discipline process from the outset, and set about navigating a course to allow the former chief to remain in his post.” The readable part of the email seems to suggest that Desjardins was pushing to have the harassment allegations investigated. Of course, we don’t know if that’s an accurate interpretation of Desjardins’ intended meaning since part of her message has been blacked out.

Len Statz, manager of investigative analysts for the Office of the Police Complaint Commissioner, told Focus in an email that Lowe’s office had not seen Desjardins’ email previously. Statz wrote: “In the Commissioner’s view, the email provided to Focus Magazineprovides further support for his position that the Mayors were aware of the allegations of harassment, did not fulfill their duty to inform the Commissioner and, arguably, continued on a path that would see the former chief remain in his post. We note that the covering letter to Pat Gallivan’s preliminary report, dated November 16, 2015, summarized the allegations of harassment (including one of the allegations that was later substantiated by Discipline Authority Pitfield) and offered to investigate those allegations, indicating that investigation would take about a week. There is no documented action to take her up on that offer and there was no notification to our office.”

(For the record, the email shown here was provided to the Police Board’s Collette Thomson by the Township of Esquimalt, according to Thomson. It had apparently been found as part of an earlier FOI search of Helps’ records, which were printed out in paper form and preserved by Esquimalt. Those records were originally gathered by City of Victoria employee Colleen Mycroft, which is why her name appears at the top of the email. Both Helps and Desjardins were asked to comment for this story. As of our deadline, neither had responded.)

Six days after suggesting they should do a second investigation, Desjardins sent to Helps, without comment, VicPD’s policy papers on “Workplace Harassments & Improper Activity,” “Workplace Violence,” and “Code of Ethics.” Again, if there was a response from Helps, it has been deleted from the City’s records.

The records provided to Focus don’t include any other communications between Desjardins and Helps for the rest of October or November 2015. But the records released by Lowe’s office show that on November 16, 2015, a full month after Desjardins suggested an investigation of the harassment allegations, Gallivan wrote in a letter to the mayors: “I understand that you are considering how to address those allegations. As previously stated, should you wish to expand our mandate to include an investigation of those matters, in light of my schedule and given the need to deal with these matters expeditiously, I would need to engage the assistance of one of my partners to complete the investigation. I have discussed this matter with my partner…and she advises she would be able to set aside a week to conduct the witness interviews.”

To summarize, then, Desjardins apparently believed an independent investigation of the allegations should be done, she thought Gallivan should do it, Gallivan had been approached, and Gallivan had offered her company’s services to do it “expeditiously.” Yet the investigation never took place. Why? Again, Helps says now: “We were authorized to deal only with the issues of whether Elsner had engaged in an inappropriate relationship with the wife of a VicPD member and whether Elsner had improperly used police social media accounts.” But it’s now evident that neither Desjardins nor Gallivan believed that to be the case. They were both ready to proceed with an investigation into the harassment allegations.

Why did Helps resist this direction? We don’t know for certain because her emails have been deleted. But it’s evident that Helps weighed the allegations made by the two women against something she believed to be true about Elsner. Her position on Elsner is a matter of public record. On December 4, 2015, when Helps was asked on Global TV if there was “any truth to it that there’s an investigation going on with the chief,” Helps replied, “No. The board has full confidence in our chief. He’s the best thing that’s happened to this town and Esquimalt in a long time.”

So Helps weighed the allegations of the two women, plus the evidence of Elsner conducting “an inappropriate relationship” with the wife of a subordinate officer, against something else and decided in favour of Elsner. What outweighed the allegations of the women?

Soon after the investigation of Elsner broke into public view in December 2015, there was talk on social media about the Twitter allegation against Elsner being a retaliation by VicPD personnel who opposed the new “community policing” direction in which he was taking the department. There was said to be opposition to Elsner’s shift away from some of the policies of former Police Chief Jamie Graham. That shift included, for example, a freeze on promotion of officers based on arrests and ticketing, and a move toward promotion based on community engagement and contact.

Did this idea—that Elsner was being punished for being progressive—tip Helps’ judgment in favour of Elsner and against the women who accused him?

Indeed, the two mayors had directed Gallivan to determine whether there was “misconduct by any other employee of [VicPD] or if there were any security issues with respect to [VicPD’s] information system.” The mayors apparently wanted to know if any improper action had led to Elsner’s tweets being brought to their attention.

After investigating the matter, Gallivan reported, “I have no reason to believe that there was any misconduct” on the part of VicPD members. But even if it had been true—that Elsner was punished by VicPD members because he was progressive—it’s difficult to see how that would cancel out Elsner’s documented misconduct involving women.

After Lowe’s report was released last September and many more details about what had happened during the mayors’ investigation circulated in the community during the civic election campaign, Helps and Desjardins both claimed they had been libelled by Lowe. To understand why Helps might not want to openly acknowledge that she had sided with an accused abuser and stood in the way of an expeditious investigation of the allegations of harassment, consider a statement made by Sonia Theroux, Helps’ campaign manager. Theroux made this comment on social media shortly before the election: “I’m a multi-time survivor; I’d never support a mayor who tried to protect an abuser. Full stop.”

Theroux had apparently been told by Helps that a “second letter [was] on its way to the OPCC re new allegations when media intercepted,” back in December 2015. “There was no intention to ‘cover up’ the allegations,” Theroux wrote.

Helps has never made any public statement about such a “second letter.” If such a letter had being contemplated, wouldn’t the mayors have secured a record of it in case it was ever necessary to prove they intended to pursue the harassment allegations?

But Helps’ own words back in December 2015 make it clear how unlikely the existence of a “second letter” was. Again, recall her statement: “The Board has full confidence in our chief. He’s the best thing to happen to this town and Esquimalt for a long time.”

How could Helps make that “best thing” claim while, at the same time, she was writing a “second letter” to Lowe to inform him that the mayors were going to begin an investigation of Elsner’s “nuts to butts” maneuver with his female staff.

While Gallivan was investigating the salacious tweet allegation against Elsner, Elsner committed three additional acts of serious misconduct. He lied to Gallivan about what he had done, he attempted to obtain false testimony from a subordinate police officer, and he misled a fellow police officer. The first two of those actions were each judged to merit dismissal from policing; one of those was considered tantamount to an obstruction of justice by retired Judge Carol Baird Ellan. In other words, Elsner’s attempt to cover up the tweeting and “nuts to butts” maneuver were what made him forever unemployable as a police officer. One has to wonder whether Mayor Helps’ attempt to delete her way out of her own predicament will, in a similar fashion, eventually catch up with her employability as a politician.

Focus has requested that the Office of the Information and Privacy Commissioner review the matter of the mayor’s missing emails. We will continue to report what we learn.

David Broadland is the publisher of Focus.

The Victoria Police Board's full response to Focus' request for communications between Mayor Helps and Mayor Desjardins: